2 128 Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts I. Introduction The issue of whether same-sex couples should be able to enter into marriage or an equivalent institution has been addressed in many jurisdictions in the past two decades. Those legal systems that have either created some form of legally-recognized same-sex partnership or opened the existing institution of marriage to such couples, have each faced difficult legal questions. One such question concerns whether or not governmentemployed or government-authorized persons (referred to here generically as marriage officers when not referencing a particular jurisdiction) may refuse to participate in the formalization of a same-sex union for religious reasons. On the one hand, it may be argued that states should respect the religious and conscientious scruples of their citizens and should not discriminate against marriage officers who claim that their religious convictions prevent them from conducting marriages or civil unions between same-sex couples. On the other hand, it may be argued that allowing state employees to refuse to do so perpetuates the very discrimination that the institutionalization of same-sex unions aims to abolish. This article compares the different attempts at resolving this conflict in four jurisdictions: the Netherlands, South Africa, Scotland, and Canada. The primary purpose of the paper is to analyze both the nature of the complexities which arise in each jurisdiction as they attempt to resolve the conflict, as well as the practice of using arguments concerning discrimination and accommodation in order to seek such resolution. We will also discuss how these issues reflect the complexity of the larger issue of whether and how to extend legal recognition to formalized same-sex couples. This discussion will shed some light on the more general issue of the ability to transplant the legal resolutions from one jurisdiction to another. The selected jurisdictions were chosen based on the areas in which each of the authors have conducted their research. These jurisdictions provide a useful context in which to situate a comparative analysis both because of their legal and social similarities, as well as the differences which are not immediately apparent. From a legal perspective all four jurisdictions have reputations for being progressive and each has its roots in some European tradition. In South Africa, however, the Roman-Dutch common law is accompanied by customary law, which may carry less legal weight, but may be more influential in the lives of a greater proportion of the population. Our chosen jurisdictions are all places where there is legal acceptance of homosexuality 5 (decriminalization, protection from discrimination, relationship recognition) despite having 5 We deal only with what might be called traditional homosexuals: gay men and lesbians. Going beyond these categories would of course add yet another layer of complexity to the study.

3 MacDougall et al, Conscientious Objections to Creating Same-Sex Unions 129 differing degrees of social hostility towards it. They are all places where, because of immigration or political changes or both, there is some social or political flux in progress. As well, the jurisdictions are sufficiently different so as to generate questions about the ability to transport legal analyses or solutions to such socio-legal issues across jurisdictions. The specific legal system in each jurisdiction is in fact different: a common law system with civilian roots in Scotland; Roman-Dutch common law in South Africa; civil law in the Netherlands; a mixture of the English common law and the French civil law in Canada. Different also have been the various responses to the common problem how to accommodate same-sex couples within a system of family regulation that seeks to avoid discrimination on the basis of sexual orientation. The basic concepts are often the same but the history of legal developments affecting this issue is quite different in each jurisdiction. The way in which homosexuality and religious expression or ideas are legally protected in each jurisdiction is different. It is clear that the legal issue concerning the accommodation of each must be resolved in harmony with other historical legal developments in the given jurisdiction. To a certain extent, then, this paper is a critique of the assumption that legal solutions to these (and similar) issues can simply be transported across borders to somewhat similar jurisdictions. The underlying issues that make this simple transport complicated or impossible will be evident from the discussion here. A signal service of comparative analysis is to problematize easy and adoptive solutions, however the main aim of this paper is to investigate which concepts, analyses, and solutions can transcend the boundaries between somewhat similar jurisdictions. The determination of which lessons and approaches might be adopted or adapted by the jurisdictions in question is also an important aspect of a comparative legal analysis such as this one. Our primary concern is not the ability of religious officials to refuse to conduct same-sex marriages within their religious institutions or contexts. We accept (and, in fact, it is not much disputed) that religious institutions are entitled to conduct (or not conduct) marriages according to their own tenets and doctrines. We focus, rather, on civil servants (or their equivalents) who act as marriage officers and who object to participating in the legal institutionalization of same-sex unions.

4 130 Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts II. Background: The Religious Associations of Marriage Marriage is an institution laden with symbolism and deep social importance. Though the historical association of religion in the institution of marriage is common in each of the jurisdictions being considered here, there are different assumptions about the degree to which religious ideology may inform legal issues relating to marriage, including its very definition. Moreover, for many people and in most societies the institution of marriage remains linked with religious norms. 6 A. The Netherlands The Netherlands, where marriage legally-speaking at least has been an exclusively civil affair since 1795, 7 is, among the considered jurisdictions, the one where religious bodies have least influence over the institution of marriage. This is probably due to the fact that Calvinism, the major religious tradition in the country, did not regard marriage as a sacrament, but as primarily a secular issue. Marriages officiated by religious representatives lack legal effect and religious weddings prior to the conclusion of a civil legal marriage are forbidden. A religious representative who performs such a premature religious wedding may be criminally sanctioned. 8 Nevertheless, marrying couples often have religious ceremonies after the conclusion of the civil ceremony. Despite this long history of secularization of marriage, providing religious marriages with legal effect has been frequently debated and re-considered, most recently in Although secular authority over the institution of marriage has prevailed, the wish to reintegrate religion into marriage ceremonies persists in some quarters, carrying potentially detrimental consequences for same-sex couples. B. South Africa In 1652 the laws of Holland (which was at the time a province of what is now the Netherlands) were transported into South Africa by colonial occupation. At that time, marriages were preceded by the publication of banns and could 6 Robert Leckey, Profane Matrimony (2006) 21 CJLS 1. 7 L Westerhof, Civiel effect voor het kerkelijk huwelijk? [Legal Effect for the Church Marriage?] (2002) 77 NJB Art 1:68 BW (Burgerlijk Wetboek) [Dutch Civil Code]. 9 See Netherlands, Tweede Kamer, Kamerstukken II, Vergaderjaar , Burgerlijk huwelijk en kerkelijk huwelijk [Civil Marriage and Church Marriage], No 1 Brief van de Staatssecretaris van Justitie [Letter of the Deputy Minister of Justice] (5 November 2001). It is quite telling that in the Netherlands, religious marriage is still referred to as church marriage.

5 MacDougall et al, Conscientious Objections to Creating Same-Sex Unions 131 be concluded either in a church or by a magistrate. 10 Civil marriage before a state official was introduced in South Africa in Subsequently there were periods when marriages were concluded only in churches, as well as other brief periods when marriage was concluded only by secular authorities. Mostly, and with small variations between the four territories and states which would eventually form South Africa in 1910, marriages could be concluded either by religious or state authorities. 11 The adoption of the Marriage Act, standardized the different marriage laws in the four provinces. The current position is that marriages can be conducted either by state functionaries, or by religious officials who comply with the statutory requirements. 13 The influence of Christianity on the legal definition and consequences of marriage in South Africa was manifest in various rules such as the prohibition of marriages between people who had committed adultery with one another, 14 or the refusal to recognize the validity of Islamic marriages on the basis that they were potentially polygamous. 15 The picture is further complicated by the historical and contemporary recognition of traditional African marriages, 16 although these marriages have been regarded as lower status 17 than civil marriages in terms of the Marriage Act, Many of the explicitly Judeo- Christian features of civil marriage have since been removed and therefore civil marriage can no longer simply be equated with religious marriage; however, some religious overtones remain, such as the insistence that civil marriage must be monogamous. In fact, the creation of separate legislation to cater for same-sex marriage is arguably motivated by the desire to maintain a form of marriage which would be acceptable to the Christian majority in South Africa. 10 As a result of the Political Ordinance of the States of Holland, adopted in For a historical overview, see HR Hahlo, The South African Law of Husband and Wife, 5th ed (Cape Town: Juta, 2005) ch See June D Sinclair & Jacqueline Heaton, The Law of Marriage: Based on H.R. Hahlo, the South African Law of Husband and Wife, vol 1 (Cape Town: Juta, 1995) ch (S Afr), No 25 of Sections 2-10 of the Marriage Act, 1961, ibid, deal with the appointment of marriage officers and sections 12, 22, set out the requirements for a valid marriage. In addition, the common law also regulates other aspects of the capacity to marry. 14 Cloete v Resident Magistrate of Elliot, 1914 CPD The Appellate Division in Green v Fitzgerald, 1914 AD 88, however, declared that adultery was no longer a crime. 15 Ismail v Ismail, 1983 (1) SA 1006 (A). 16 Currently enabled by the Recognition of Customary Marriages Act, 1998 (S Afr), No 120 of Likhapha Mbatha, Najma Moosa & Elsje Bonthuys, Culture and Religion in Elsje Bonthuys & Catherine Albertyn, eds, Gender, Law and Justice (Cape Town: Juta, 2007) 158.

6 132 Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts C. Scotland Scotland retained a closer connection between faith and marriage despite having somewhat similar connections to Calvin as existed in the Netherlands and South Africa. The reason was that, after the Reformation, canon law remained the law of the land except insofar as it was inconsistent with the reformed faith, and no such inconsistency was perceived in continuing the tradition of church ministers solemnizing marriages. Marriage could be solemnized in Scotland only by religious ceremony until 1940, when the Marriage (Scotland) Act 1939 came into force, permitting civil marriage celebrated by a secular state official, in addition to religiously conducted marriage. 18 The dominant Church of Scotland s ( the Kirk s ) doctrinal interpretations of scripture continued to influence the law s conception of marriage and how it should be controlled, well into the 20th century. 19 D. Canada Distrust among the four original Canadian provinces, in particular between the French-speaking (largely Catholic) and the English-speaking (largely Protestant) provinces, over the role of religion in marriage and, particularly, divorce 20 was so fundamental that it influenced Canada s constitutional division of powers in The result is that the federal government defines marriage, 22 but the provinces are in charge of the solemnization of marriage. 23 That is to say, the provinces (and territories) decide how marriages are conducted - including who is authorized to perform them. Currently, all Canadian jurisdictions recognize most religious marriages without the need for a separate state ceremony, although the provinces still issue marriage licences. In addition, the provinces (and territories) facilitate the performance of secular or civil marriages. 18 After the Reformation the celebration of marriage fell within the exclusive jurisdiction of the Kirk (the Established church in Scotland), but the Marriage (Scotland) Act, 1834 (UK), 4 & 5 Will IV, c 28, permitted religious celebrants from churches other than the Church of Scotland. 19 See Jane Mair, Public Ceremony and Private Belief: The Role of Religion in the Scots Law of Marriage [2007] 4 Jurid Rev See FJE Jordan, The Federal Divorce Act (1968) and the Constitution (1968) 14:2 McGill LJ Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No Ibid, s 91(26). 23 Ibid, s 92(12).

7 MacDougall et al, Conscientious Objections to Creating Same-Sex Unions 133 III. The Institutionalization of Same-Sex Unions Each of the four jurisdictions under consideration here has in the past couple of decades dealt with demands for the recognition of same-sex relationships within a wider context of providing legal recognition to family formations outside of traditional marriage. As a result of the different legal and social contexts within these jurisdictions, there have been significantly varied responses to these demands. A. The Netherlands The Netherlands introduced legally-recognized registered partnerships for both same and opposite-sex couples in Other than having fewer formalities for dissolution, registered partnerships are legally equivalent to marriage and can easily be converted into marriage or vice versa. 25 Three years later same-sex couples gained access to the institution of marriage itself 26 and article 1:30(1) of the Dutch Civil Code now explicitly states: A marriage can be entered into by two people of different or same sex. 27 Ironically, this opening up of marriage to same-sex couples provided the impetus for a proposal to re-introduce legally-effective religious marriages. GroenLinks, a left wing green party, proposed to lift the ban on marriages conducted by religious officials so as to accommodate orthodox Christians who strongly opposed the new legislation. 28 Like its predecessors, the proposal did not get much support, even from the groups which it intended to 24 Wet van 5 juli 1997 tot wijziging van Boek 1 van het Burgerlijk Wetboek en van het Wetboek van Burgerlijke Rechtsvordering in verband met opneming daarin van bepalingen voor het geregistreerd partnerschap [Act of 5 July 1997 to Amend Book 1 of the Civil Code and the Code of Civil Legal Procedure in Connection with the Inclusion of Provisions Regarding Registered Partnership], Stb 1997, 324. The act entered into force on 1 January Katharina Boele-Woelki et al, Huwelijk of geregistreerd partnerschap?: Een evaluatie van de Wet openstelling huwelijk en de Wet geregistreerd partnerschap in opdracht van het Ministerie van Justitie [Marriage or Registered Partnership?: An Evaluation of the Act Opening Civil Marriage to Same-Sex Couples and the Act Introducing Registered Partnership, Commissioned by the Ministry of Justice] (The Hague: Ministerie van Justitie, 2006); Kees Waaldijk, ed, More or Less Together: Levels of Legal Consequences of Marriage, Cohabitation and Registered Partnership for Different-Sex and Same-Sex Partners: A Comparative Study of Nine European Countries (Paris: Institut national d études démographiques, 2004); I Curry- Sumner, Private International Law Aspects of Homosexual Couples: The Netherlands Report, online: (2007) 11.1 EJCL 8 <http://www.ejcl.org>. 26 Wet van 21 december 2000 tot wijziging van Boek 1 van het Burgerlijk Wetboek in verband met de openstelling van het huwelijk voor personen van hetzelfde geslacht [Act of 21 December 2000 to Amend the Civil Code in Connection with the Opening up of Marriage for Persons of the Same Sex], Stb 2001, Dutch Civil Code, supra note 8, art 1:30(1) [translated by author]. 28 Netherlands, Tweede Kamer, Handelingen, Vergaderjaar , No 19 (7 November 2000)

8 134 Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts accommodate, possibly because it offered no real solution for those who want to see the institution of marriage retained for only opposite-sex couples. 29 B. Scotland By way of contrast to the Netherlands, where same-sex couples are fully included in the institution of marriage, in Scotland marriage remains the exclusive preserve of opposite-sex couples, while same-sex couples have exclusive access to an equivalent and entirely statutory institution. The Civil Partnership Act 2004 adopts what might be called an equivalence model, creating an institution exclusively for same-sex couples, called civil partnership. Civil partnership is equivalent to, but separate from, the existing institution of marriage that remains exclusively for opposite-sex couples. 30 Civil partnership may be equivalent to marriage, but it is, quite intentionally, an entirely secular institution. So, for instance, registrars do not solemnize civil partnerships, for that language brings to mind the solemnities of religious ritual, which is reserved for marriage. Instead, civil partnerships are registered (even though many do so in the course of individually designed and legally non-sanctioned ceremonies). The secularity of the new institution is further emphasized by the rule that the registration may occur in any place in Scotland, except any place that is or has been used solely or mainly for religious purposes. 31 Both in Canada and South Africa the recognition of same-sex relationships was preceded by Law Commission investigations into the various possibilities for giving legal effect to non-marital conjugal relationships, 32 which were overtaken by successful constitutional challenges to the exclusively opposite- 29 C.f. Staatkundig Gereformeerde Partij, Daad bij het Woord: De SGP stáát ervoor! Verkiezingsprogramma SGP, [Act by the Word: The SGP Stands for It! Political Programme of the Dutch Calvinist Party], online: SGP <http://www.sgp.nl/media/download/19720/verkiezingsprogramma%20sgp% pdf> ( God himself has instituted marriage, meant as a lifelong union between man and woman. This means that marriage between persons of the same sex cannot be intended. [translated by author] at 10). 30 Civil Partnership Act 2004 (UK), c 33. See Civil Partnership: A Framework for the Legal Recognition of Same- Sex Couples (London: Department of Trade and Industry, 2003) at paras , Annex B; Civil Partnership Registration: A Legal Status for Committed Same-Sex Couples in Scotland (Edinburgh: Scottish Executive, 2003) at paras Civil Partnership Act 2004, ibid, s 93(3). Curiously, the equivalent rule in the English and Welsh part of the Civil Partnership Act 2004 (s 6) was modified by the Equality Act 2010 (UK), c 15, s 202, and authority may be given to register civil partnerships in religious premises in England and Wales; however, even in that jurisdiction religious officiants are not permitted. 32 See Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (Ottawa: Minister of Public Works and Government Services, 2001); British Columbia Law Institute, Report on Recognition of Spousal and Family Status (Vancouver: British Columbia Law Institute, 1998); Report on Domestic Partnerships, South African Law Reform Commission, Project No 118 (March 2006). See also Thomas G Anderson, Models of Registered Partnership and Their Rationale: The British Columbia Law Institute s Proposed Domestic Partner Act (2000) 17:1 Can J Fam L 89.

9 MacDougall et al, Conscientious Objections to Creating Same-Sex Unions 135 sex marital regime. 33 This, in turn, resulted in national legislation opening marriage to same-sex couples. C. South Africa The South African Civil Union Act, 2006 allows for the solemnization of civil unions between two same-sex or opposite sex partners, either by a religious institution or by a state official. 34 The provisions relating to the place and formalities for the solemnization of civil unions mirror those applying to marriage. Additionally, at the time of solemnization the marriage officer must inquire from the parties whether their civil union should be known as a marriage or a civil partnership, 35 and the certificate of registration will indicate that the parties have either entered into a marriage or a civil union. 36 The consequences of a civil union are exactly on par with those of marriage. 37 Thus, civil unions are institutions that share all of the characteristics and consequences of marriage; they can even be registered as a marriage, though the existing marriage regime, which is limited to opposite-sex couples, is retained, albeit rather clumsily. D. Canada Before the adoption in 2005 of the Canadian Civil Marriage Act, two provinces had introduced civil unions as equivalent institutions to marriage. 38 The Civil Code in Quebec was amended in 2002 to create the status of civil union, open to same-sex and opposite-sex couples and mirroring the rights and obligations of spouses. 39 The more conservative province of Alberta 33 The most important Canadian cases were EGALE Canada Inc v Canada (Attorney General), 2003 BCCA 251, 225 DLR (4th) 472, rev g 2001 BCSC 1365, [2001] 11 WWR 685; Halpern v Canada (Attorney General) (2003), 65 OR (3d) 161, 225 DLR (4th) 529 (CA), aff g (2002), 60 OR (3d) 321, 215 DLR (4th) 223 (Sup Ct (Div Ct)) [Halpern cited to OR]; Dunbar v Yukon Territory, 2004 YKSC 54, 8 RFL (6th) 235; Vogel v Canada (Attorney General) (2004), [2005] 5 WWR 154 (available on QL) (Man QB); Boutilier v Nova Scotia (Attorney General), [2004] NSJ No 357 (QL) (SC); W (N) v Canada (Attorney General), 2004 SKQB 434, 246 DLR (4th) 345; Pottle v Canada (Attorney General), [2004] NJ No 470 (QL) (NL SC (TD)); Harrison et al v Canada (Attorney General) et al, 2005 NBQB 232, 290 NBR (2d) 70 (TD). In South Africa, a series of constitutional challenges to legal discrimination against people who have sex with others of the same sex started off with National Coalition for Gay and Lesbian Equality v Minister of Justice, [1998] ZACC 15; SA 6 (CC); 1998 (12) BCLR 1517 (CC), which attacked the criminalization of sodomy, and culminated in Minister of Home Affairs v Fourie, [2005] ZACC 19; 2006 (1) SA 524 (CC), in which the complete failure to give legal recognition to same-sex relationships was declared unconstitutional. 34 (S Afr), No 17 of 2006 [Civil Union Act]. 35 Ibid, s 11(1). 36 Ibid, s 12(3). 37 Ibid, s SC 2005, c SQ 1991, c 64; see arts

10 136 Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts passed the Adult Interdependent Relationships Act in an attempt (albeit a vain one) both to pre-empt federal legislation allowing same-sex couples entry into marriage, and to preserve the existing limits of accessibility to marriage. 40 The impact of these provincial statutes and the expansion to other provinces of such approaches have now been pre-empted by court cases that opened civil marriage to same-sex couples and by the 2005 federal statute. Typical of the reasons in the court cases are those from the Ontario Court of Appeal. The Court of Appeal held that exclusion of same-sex couples from marriage denies persons in same-sex relationships a fundamental choice whether or not to marry their partner. 41 The Court accepted that the common law recognized only opposite-sex couples as capable of marrying, but held that marriage did not have a constitutionally fixed meaning. The Court said, an argument that marriage is heterosexual because it just is amounts to circular reasoning. 42 The Civil Marriage Act, passed in response to both of these cases as well as political pressure, is clear, stating: [m]arriage, for civil purposes, is the lawful union of two persons to the exclusion of all others and [f]or greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex. 43 It is worthy of note that the change of the definition of marriage in Canada does not differentiate between religious and civil marriage and therefore contemplates the availability of religious marriages for same-sex couples as well as for opposite-sex couples. To summarize the various legal regimes: in the Netherlands, both same and opposite-sex couples can either marry or enter into registered partnerships. In Canada, the institution of marriage is open either to same-sex or opposite-sex couples and some provinces offer a civil union-type alternative to both types of partnerships. South Africa retains opposite-sex only marriage, but also has civil unions, which are open to same or opposite-sex couples and which may be called marriage if the partners so wish. Only in Scotland is there no institution open to both categories of partners, with marriage reserved for opposite-sex couples and civil partnership reserved for same-sex couples SA 2002, c A Halpern, supra note 33 at para Ibid at para Supra note 38, ss 2, 4. The constitutional validity of the Civil Marriage Act was confirmed in Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR The major technical complexity caused by this insistence on gender-mix exclusivity concerns transgender individuals who seek to have their new gender recognized while in a marriage or civil partnership. The Gender Recognition Act 2004 (UK), 2004, c 7, requires the termination of the existing relationship, followed by the recognition of the new gender, leaving the person free to enter the other type of relationship with his or her partner.

11 MacDougall et al, Conscientious Objections to Creating Same-Sex Unions 137 IV. Conducting Same-Sex and Opposite-Sex Marriages A. The Netherlands In the Netherlands secular marriage ceremonies and the registration of registered partnerships are the tasks of civil servants who work for the Registrar s Office (Burgerlijke Stand); however, in practice the ceremonial part of the marriage is often conducted by people who may or may not work for the government but who are in any case sworn in just to carry out this ceremonial function on a kind of stand-by contract. A person carrying out this latter function is known as a special civil servant of the Registry. Municipalities are obliged to ensure that all couples who wish to marry are able to do so, but they have some scope of discretion concerning the local practice and execution of these obligations. For instance, some municipalities prefer to send only special civil servants to officiate marriages. Others publish the names of all available regular and special civil servants on their websites, accompanied by a resume, a photo, and sometimes information on their private life, hobbies, or their (non)religious affiliations. There have been cases where the (un)willingness to officiate same-sex marriages has been explicitly mentioned. 45 Despite the absence of a provision allowing marriage officers to object to performing same-sex marriages, in 2011 there were approximately 105 objecting civil servants in the Netherlands, employed by 58 different municipalities; however, 72% of the municipalities have indicated that they are not willing to countenance these objections (so-called weigervrije gemeenten) and 234 municipalities hire new servants only on condition that they are willing to perform all marriages. 46 This refusal, at the municipal level, to allow for such conscientious objections has caused job seekers and employees to file complaints with the Dutch national equality body (Commissie Gelijke Behandeling, the CGB ). This body is tasked with investigating discrimination complaints and may release non-binding, but socially persuasive findings on the discrimination issues. The complaints have been made on the basis that the municipal employers, by not appointing, or by refusing to renew the contracts of objecting officials, discriminate against them on the basis of religion. 45 See e.g. the website of the municipality of Staphorst: Buitengewone ambtenaren burgerlijke stand [Special Officials Registry], online: Gemeente Staphorst <http://www.staphorst.nl/index.php?simact ion=content&mediumid=1&pagid=1000> (two of the five special civil servants explicitly refer to the importance of marriage as a union between man and woman ). 46 Inventarisatie trouwbeleid [Inventory of Marriage Policies], online: COC Nederland <http://www. coc.nl/dopage.pl?thema=any&pagina=algemeen&algemeen_id=407> (statistics as of 25 May 2011).

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